Citation NR: 9702229
Decision Date: 01/23/97 Archive Date: 02/07/97
DOCKET NO. 95-08 173 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to either the Paragraph 29 or 30 benefit based on
hospitalization from December 21, 1991, to January 2, 1992,
for a lumbar hemilaminectomy with diskectomy on account of a
service-connected postoperative intervertebral disc syndrome
at L5-S1.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D. Jeffers, Associate Counsel
INTRODUCTION
The veteran served on active duty in the United States Army
from November 1965 to October 1967 and from September 1983 to
September 1986.
This appeal arose from a September 1994 rating decision of
the Montgomery, Alabama, Department of Veterans Affairs (VA),
Regional Office (RO), which denied entitlement to the benefit
sought.
Initially, it is noted that the instant appeal was developed
by the RO and certified to the Board on issue on entitlement
to the Paragraph 29 benefit only. As part of his November
1993 claim, the veteran requested that a determination be
made as to entitlement for any and all benefits due to his
surgery. Under the applicable regulations, the veteran may
be awarded either the Paragraph 29 or 30 benefit due to his
surgery. However, it is found that the veteran has not met
the basic eligibility requirements of entitlement to the
Paragraph 29 benefit, as his period of hospitalization was
less than 21 days. See 38 C.F.R. § 4.29 (1995).
Consequently, the undersigned considers the certification of
the claim as being related to Paragraph 29 benefits only to
be in error and will only address the issue of entitlement to
Paragraph 30 benefits herein.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that he is entitled to the
Paragraph 30 benefit, as he was unable to return to work for
more than two months after his hospitalization for surgery
for a service-connected disability. Therefore, he believes
that he is entitled to the benefit sought.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports the
veteran’s claim of entitlement to the Paragraph 30 benefit
for a lumbar hemilaminectomy with diskectomy on account of a
service-connected postoperative intervertebral disc syndrome
at L5-S1.
FINDINGS OF FACT
1. The veteran was hospitalized, from December 31, 1991 to
January 2, 1992, for a lumbar hemilaminectomy with diskectomy
on account of a service-connected postoperative
intervertebral disc syndrome at L5-S1.
2. Private postoperative treatment records show that the
veteran was given a note to return to work on March 18, 1992.
CONCLUSION OF LAW
The criteria for entitlement to the Paragraph 30 benefit have
been met. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1995);
38 C.F.R. § 4.30 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran’s claim is well grounded within the meaning of
38 U.S.C.A. § 5107(a). That is, the undersigned finds that
he has presented a claim which is plausible. The undersigned
is also satisfied that all relevant facts have been properly
developed. The record is devoid of any indication that there
are other records available which should be obtained.
Therefore, no further development is required in order to
comply with the duty to assist mandated by 38 U.S.C.A.
§ 5107(a).
Treatment records obtained from the West Florida Regional
Medical Center show that the veteran was admitted, on
December 31, 1991, for severe back, left hip and leg pain
radiating to the ankle, with numbness and paresthesia. On
examination, he had positive straight leg raising to 10
degrees on the left. There was a positive Lasegue’s sign.
He had crossed-leg pain at 45 degrees, and an absent left
Achilles reflex. The veteran was also noted to have
hypesthesia and posterior tibialis weakness. The impression
was recurrent L5-S1 disk verified by magnetic resonance
imaging scan. That same day, he underwent a lumbar
hemilaminectomy with diskectomy on account of a service-
connected postoperative intervertebral disc syndrome at L5-
S1. Postoperatively, the veteran was noted to have improved
dramatically. He was discharged on January 2, 1992, with no
complications.
Treatment records developed by E. F. Eyster, M.D., show that
the veteran was seen on January 7, 1992, for suture removal.
At that time, it was noted that the veteran had redness and
edema, and that he complained of discomfort. The site was
swabbed and covered. Activity restrictions were also
outlined to the veteran. In February 1992, the veteran
returned. It was noted that the veteran stated that he
thought that he was doing better, as his pain seemed to be
resolving. Dr. Eyster noted that there was still marked
posterior tibia weakness and absent Achilles reflex with S1
hypesthesia, which was only slightly better than
preoperative. The veteran was given exercise instructions
and told not to work. On March 18, 1992, Dr. Eyster noted
that the veteran was still having some radicular symptoms of
the left lower extremity, but testing showed that there was
much improvement in his weakness. It was also noted that the
veteran still suffered from hypesthesia at S1. Although that
the veteran still had to be followed closely, Dr. Eyster
indicated that the veteran could return to light duty.
However, the veteran could not bend, stoop or lift. He was
given a note to return to work. The veteran was also seen in
June and October of 1992 for further evaluation of the
disability.
A total disability evaluation (100 percent) will be assigned
without regard to other provisions of the rating schedule
when it is established by report at hospital discharge
(regular discharge or release to non-bed care) or outpatient
release that entitlement is warranted under paragraph (a)
(1), (2) or (3) of this section effective the date of
hospital admission or outpatient treatment and continuing for
a period of 1, 2 or 3 months from the first day of the month
following such hospital discharge or outpatient release. A
total disability rating will be assigned where the appellant
undergoes (1) surgery necessitating at least one month of
convalescence, (2) surgery with severe postoperative
residuals such as incompletely healed surgical wounds, stumps
of recent amputations, therapeutic immobilization of one
major joint or more, application of a body cast, or the
necessity for house confinement, or the necessity for
continued use of a wheelchair or crutches (regular weight-
bearing prohibited), (3) there is immobilization by cast,
without surgery, of one major joint or more. Furthermore,
section (b)(1) provides that extensions of 1, 2, or 3 months
beyond the initial 3 months may be made under paragraph
(a)(1), (2) or (3) of this section. 38 C.F.R. § 4.30 (1995).
After a contemporaneous review of the record, the undersigned
concludes that the veteran’s claim of entitlement to the
Paragraph 30 benefit is justified. The veteran was
hospitalized, from December 31, 1991 to January 2, 1992, for
a lumbar hemilaminectomy with diskectomy on account of a
service-connected postoperative intervertebral disc syndrome
at L5-S1. Treatment records obtained from Dr. Eyster clearly
show convalescence beyond one month following the surgery.
Therefore, it is the finding of the undersigned that the
veteran is entitled to the Paragraph 30 benefit for a lumbar
hemilaminectomy with diskectomy on account of a service-
connected postoperative intervertebral disc syndrome at L5-
S1.
ORDER
Entitlement to the Paragraph 30 benefit for a lumbar
hemilaminectomy with diskectomy on account of a service-
connected postoperative intervertebral disc syndrome at L5-S1
is granted.
C. P. RUSSELL
Member, Board of Veterans' Appeals
(Continued on the next
page)
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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